This copy is for your personal non-commercial use only. To order presentation-ready copies of Toronto Star content for distribution to colleagues, clients or customers, or inquire about permissions/licensing, please go to: www.TorontoStarReprints.com

Time to name an Aboriginal justice to the Supreme Court

No Aboriginal or visible minority has ever been appointed to the Supreme Court. Will Justin Trudeau do the right thing and buck tradition?

The Supreme Court of Canada building is pictured, in Ottawa, on October 15, 2014. It’s an absolute shame that Canada’s highest court has never had representation from among our First Nations, write Nader R. Hasan and Fahad Siddiqui. (Sean Kilpatrick / THE CANADIAN PRESS)

By Nader R. Hasan and Fahad Siddiqui

Mon., March 28, 2016

The surprise announcement of Justice Thomas Cromwell’s retirement from the Supreme Court of Canada has the legal community abuzz and rightly so. Prime Minister Justin Trudeau’s first appointment to the nation’s high court will shape Canadian law for years — perhaps decades — to come.

The next appointee is likely to be a current federally appointed judge from one of the provincial courts of appeal (from which eight of the nine current Supreme Court Justices emerged). Trudeau has also promised that he will appoint only a bilingual candidate. Then there is the convention of ensuring strict regional representation on the Court (Justice Cromwell held the Court’s lone Maritimes seat).

These criteria narrow the field considerably, and risk obscuring another important fact: our high court does not look like the rest of Canada. No Aboriginal or visible minority has ever been appointed to the Supreme Court. Regional representation — which convention so assiduously protects — is important, but in an increasingly ethnically and religiously diverse country, it is only one of many indicia of diversity.

Since the Abella Equality in Employment Royal Commission Report in 1984, a consensus has emerged among judges, lawyers and academics that judicial diversity matters. A diverse judiciary results in a broader range of perspectives, which is crucial to judicial decision-making. And greater judicial diversity fosters public confidence in the administration of justice.

Little progress has been made so far. Professor Rosemary Cairns Way of the University of Ottawa reports that Aboriginal and visible minority members account for roughly 23 per cent of the population, and yet from 2009 to 2014, only 1.04 per cent of appointees to the provincial superior courts were Aboriginal, and only 0.5 per cent were members of a visible minority group.

Article Continued Below

The same appears to be true of the senior reaches of the legal profession. The body that regulates lawyers in Ontario, the Law Society of Upper Canada, does not regularly collect comprehensive demographic data. But a Society report, released in 2010, shows that only 5 per cent of lawyers in Ontario between the ages of 45 and 64 are Aboriginals or visible minorities even though those two groups make up more than a fifth of that segment of the population.

It is sometimes argued that as Canada’s population diversifies, the legal profession will too. Problem solved — some years or decades down the line.

The statistics we have don’t bear out that claim though. Even among younger generations, Aboriginals and visible minorities are under-represented at the bar. And those who have managed to gain a foothold in the profession face unique challenges. The society reports that a majority of Aboriginal and visible minority lawyers believe that having a different cultural background has disadvantaged their careers. In that sense, the legal profession reflects trends in the broader job market. According to a recently released study led by University of Toronto researchers, black job applicants are 25.5 per cent more likely to land a job interview when they scrub their resumé of clues of their race.

The time has come for change. And this change requires leadership from the top. We need out-of-the box thinking, such as Trudeau’s laudable decision to name women to half his cabinet positions — including Canada’s first Aboriginal justice minister. The prime minister will have to take a similarly bold approach to fill the high court vacancy. An Aboriginal candidate should take priority. It’s an absolute shame that Canada’s highest court has never had representation from among our First Nations.

If the prime minister somehow (we say inexplicably) concludes that there is not a single qualified candidate who fits the bill, he should order an urgent and systematic examination of why the pool is so thin, and what steps should be taken to enlarge it.

These issues will not go away. There will be another vacancy in 2018 with Chief Justice Beverley McLachlin’s mandatory retirement, which would present Trudeau with another historic opportunity in his first term. And as important as the Supreme Court of Canada is in our democracy, there are going to be dozens of judicial vacancies in the lower courts that the PM will need to fill.

Tradition dictates that the next Supreme Court justice will likely come from a provincial court of appeal from the Maritimes. But it may be time to buck tradition — because we live in the most diverse country in the world and it’s 2016.

Nader R. Hasan is a lawyer at Stockwoods LLP in Toronto and an adjunct professor at the University of Toronto, Faculty of Law. Fahad Siddiqui is a lawyer at an international law firm in New York. Both are former judicial law clerks at the Supreme Court of Canada.

The Toronto Star and thestar.com, each property of Toronto Star Newspapers Limited, One Yonge Street, 4th Floor, Toronto, ON, M5E 1E6. You can unsubscribe at any time. Please contact us or see our privacy policy for more information.

More from the Toronto Star & Partners

LOADING

Copyright owned or licensed by Toronto Star Newspapers Limited. All rights reserved. Republication or distribution of this content is expressly prohibited without the prior written consent of Toronto Star Newspapers Limited and/or its licensors. To order copies of Toronto Star articles, please go to: www.TorontoStarReprints.com